MARGARET MCLEAN: Lines drawn for Battle of Bulger

Battle lines have been drawn, the war of words has commenced, and shocking developments are exploding all around. The trial of James “Whitey” Bulger is underway.

By Margaret McLean

The Patriot Ledger, Quincy, MA

By Margaret McLean

Posted Jun. 8, 2013 at 12:01 AM
Updated Jun 8, 2013 at 8:11 AM

By Margaret McLean

Posted Jun. 8, 2013 at 12:01 AM
Updated Jun 8, 2013 at 8:11 AM

BOSTON

» Social News

Editor’s note: Norwell attorney and author Margaret McLean is providing weekly analysis from the Bulger trial. Watch for her story each Saturday.

Battle lines have been drawn, the war of words has commenced, and shocking developments are exploding all around. The trial of James “Whitey” Bulger is underway.

Both sides are firing verbal shots across the courtroom before Judge Denise Casper and slinging insults in written motions.

Let’s start with the shocking development that popped up in the electronic filing system late Thursday concerning the government’s star witness, notorious hit man John Martorano, who admitted to killing over twenty people. He forged a sweet deal with the government to testify against Whitey and convicted FBI agent John Connolly. That’s why he’s been walking the streets (including those on the south shore) since his release from prison in 2007. Defense lawyer Jay Carney filed a discovery motion requesting information confirming that Massachusetts State Police have been shielding the former hit man from investigations into his criminal conduct. Carney argues that such information is exculpatory and must be handed over to the defense. Forbearance of police investigations into Martorano’s on-going criminal activity creates an inducement for him to testify against Whitey. Carney will have a field day cross-examining the hit man now.

Whitey’s strategy is loud and clear: use the government to attack the government. Another example of this is revealed in Carney’s expert witness list. Prior to trial, both sides must reveal who their expert witnesses will be and what they will be testifying about. Whitey’s number one expert is Col. Thomas Foley of the Massachusetts State Police, who just happens to be the government’s star witness. Foley will be called “to explain how James Bulger was ‘able to stay in business for so long’ including how ‘the feds stymied [State Police] investigation[s] of Whitey, got us investigated on bogus charges, tried to push me off the case, got me banished to a distant barracks, phonied up charges against other members of the State Police, lied to reporters, misled Congress, drew in the President of the United States to save themselves, nearly got me and my investigators killed.”

Number two on Whitey’s list of experts is Robert Fitzpatrick, former Assistant Special Agent in Charge of the Boston FBI Office. Fitzpatrick will testify about “the corruption between the FBI and U.S. Attorney’s Office/Strike Force, and about the lengths both offices went to in order to refrain from prosecuting Bulger.”

Whitey’s general witness list raised eyebrows, too. Names such as former Massachusetts Governor William Weld, U.S. District Court Judge Richard Sterns, and former FBI Director Robert Mueller suggest that Carney will point to decades of unabated government corruption.

Page 2 of 2 -
Prosecutors accused the defense of “not having a real witness list.” This was in reference to Carney listing Boston Globe reporters Kevin Cullen, Shelly Murphy, and Herald columnist Howie Carr as witnesses, which subjects them to a sequestration order. Witnesses are not allowed to listen to each other testify. That had to be Whitey’s idea. His hatred for the Boston Globe dates back to busing when he allegedly shot up the Globe building on Morrissey Blvd. He also despises Howie Carr. Whitey is attempting to keep them out of his courtroom. Judge Casper will likely rule that the reporters have a First Amendment right of access to the trial in order to report for the public.

The government will produce a mountain of evidence against Whitey to prove that he committed 19 murders and other racketeering related offenses such as extortion, gunrunning, and drug trafficking. Judge Casper ruled that Whitey’s 700 page FBI informant file can be admitted into evidence.

Expect a mental showdown between lawyers next week during phase II of jury selection. It’s a chess game involving psychology. The government is limited to 9 peremptory challenges and the defense has 13, which means a potential juror can be dismissed for any reason except for race. If one person is dismissed, someone else is going to fill that vacant seat. Lawyers must anticipate who’s coming up on the list and must keep track of the number of remaining challenges. Jurors may still be challenged for cause, but lawyers must persuade Judge Casper that the potential juror will not be fair and impartial.

The prosecution will likely choose jurors who are conservative, educated, business minded, and tough on crime. The defense will be seeking liberal leaning individuals who will over-analyze the case and find reasonable doubt like accountants, professors, and engineers. Perhaps younger jurors are likely to question government authority. Many times it simply boils down to instinct, chemistry, and eye contact.

The lawyers aren’t the only ones waging war on the front lines. Last week, I had lunch with south shore resident Patricia Donahue at Marina Bay in Quincy. Her husband Michael was allegedly murdered in 1982 by Whitey and his associates. I asked about her thoughts on the eve of the trial. “This is why I stay and fight,” she said.

Patricia is battling both Whitey and the government. Patricia is fighting for justice..